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[2019] ZAGPPHC 153
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JK Vorlaufer & Sons (Pty) Ltd and Others v Hodge (48438/2016) [2019] ZAGPPHC 153 (30 April 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
Case Number: 48438/2016
30/4/2019
In
the matter between:
J
K VORLAUFER & SONS (PTY) LTD
First Exciplent/Defendant
WALTER
KARJOSEF VORLAUFER
Second Exclplent/Defendant
BARBARA
ANNE VORLAUFER
Third Exclplent/Defendant
KAREN
VORLAUFER
Fourth Exclplent/Defendant
and
MIKE
HODGE
Respondent/Plaintiff
In
re:
MIKE
HODGE
Respondent/Plaintiff
and
J
K VORLAUFER & SONS (PTY) LTD
First Excipient/Defendant
WALTER
KARJOSEF VORLAUFER
Second Excipient/Defendant
BARBARA
ANNE VORLAUFER
Third Excipient/Defendant
KAREN
VORLAUFER
FourthExclplent/Defendant
JUDGMENT
KUBUSHI J
INTRODUCTION
[1]
This is an exception raised by the
defendants against the plaintiffs particulars of claim. The
defendants' grounds of exception
are categorised into two groups,
namely, those that are said to render the plaintiff's particulars of
claim excipiable due to lack
of necessary averments to sustain a
cause of action and those that are alleged to render the plaintiff's
particulars of claim excipiable
due to being vague and embarrassing.
[2]
The test on an exception that the
particulars of claim fail to disclose a cause of action, is said to
be whether on all possible
readings of the facts, no cause of action
is made out.
[1]
In order to succeed with an exception that the particulars of claim
fail to disclose a cause of action, a defendant must show that,
on
any reasonable construction, the particulars of claim disclose no
cause of action. The duty rests on the defendant to establish
that in
all its possible meaning no cause of action is disclosed.
[2]
The defendant must also satisfy the court that the conclusion
of law pleaded by the plaintiff cannot be supported
by any reasonable
interpretation of the particulars of claim and that it is bad in law.
[3]
[3]
As regards the exception based on
vagueness and embarrassment arising out of lack of particularity, the
approach to be adopted was
stated in
Francis
v Sharp
above, as follows:
[4]
"As to the exceptions on the ground that
certain paragraphs in the particulars of claim were vague and
embarrassing, the Court
reiterated the approach to be adopted to an
exception that a pleading is vague and embarrassing, namely that such
exception should
not be allowed unless the excipient
would be seriously prejudiced if the
offending allegations were not
expunged".
[4]
For ease of reference I shall, in this
judgment, continue to refer to the parties as cited in the
particulars of claim.
BACKGROUND
[5]
The summons, in this instance, was
issued on 20 June 2016 and served on 7 July 2016. On 11 July 2016 the
defendants entered an appearance
to defend the matter.
[6]
On 22 July 2017, the defendants, served
the plaintiff with a notice in terms of uniform rule 35 (12) and (14)
requiring to be furnished
with numerous documents. The plaintiff is
said to have replied comprehensively to be said notice and furnished
the defendants with
some of the requested documents.
[7]
On 22 January 2018 the plaintiff served
a notice of bar on the defendants. Instead of filing their plea, the
defendants, on 29 January
2018, served the plaintiff with two
processes, namely: .
7.1
An
exception that the plaintiff's particulars of claim lack averments to
sustain a cause of action; and
7.2
A
notice to remove the cause of complaint which allegedly rendered the
plaintiff's particulars of claim vague and embarrassing.
Another notice of exception on the ground that
the particulars of claim are vague and embarrassing was served on the
plaintiff on
2 March 2018.
[8]
Both notices of exception raised about
sixteen grounds on which the defendants contend the plaintiff's
particulars of claim are
excipiable. But, in their heads of argument
the defendants deal respectively with twenty grounds of exceptions.
THE ISSUE
[9]
The issue, therefore, is whether the
plaintiff's particulars of claim are excipiable either on the grounds
that they lack necessary
averments to sustain a cause of action
and/or due to being vague and embarrassing rendering them susceptible
to be set aside.
THE GENERAL APPROACH TO EXCEPTIONS
[10] The proper
approach to be adopted in determining an exception is set out in the
judgment in
Colonial Industries Ltd v
Provincial Insurance
Co
Ltd
[5]
as follows:
"Now the form of pleading known as an
exception is a valuable part of our system of procedure if
legitimately employed:
its principal use
is to raise and obtain speedy
and economical decision
of questions of law which are apparent
on the face of the pleadings: it also serves as means of taking
objection to pleadings which
are not sufficiently detailed or
otherwise lack lucidity and are thus embarrassing. . . .
save in the instance
where an exception is taken for the
purpose of raising a substantive question of law which have the
effect of settling the dispute
between the parties, an excipient
should make out a very clear, strong case before he should be allowed
to succeed."
[6]
[11]
Van Heerden J in
South
African National Parks v Ras
[7]
summed up the position as follows:
"The court should not look at a pleading
with a magnifying glass of too high a power. It is the duty of the
court when an exception
is taken to a pleading first to see if there
is a point of law to be decided which will dispose of the case in
whole or in part.
If there is not, then it must see if there is
embarrassment which is real as a result of the faults in the pleading
to which exception
is taken. Unless the excipient can satisfy the
court that there is such a point of law or such real embarrassment
the exception
should be dismissed."
[12]
In
Ocean
Echo Properties 327
CC
v
Old Mutual Life Assurance
Co
(South
Africa) Ltd
[8]
the main purpose of an exception was stated as, being to avoid the
leading of unnecessary evidence at a trial.
[13]
. An exception complains of a defect
inherent in the pleading: admitting for the moment that all the
allegations in the summons
are true, it asserts that even with such
admission, the pleading is excipiable
[9]
.
The court should look at the pleading as it stands and no facts
outside those stated in the pleading can be brought into issue.
There
can be no reference to any other document.
[10]
THE NATURE OF THE PLAINTIFF'S CLAIM
[14]
At the outset I set out the premise that
underlies the plaintiffs claim as set out in his particulars of
claim. In essence the plaintiffs
claim amounts to -
14.1
Repayment
of the amount of R686 921, 38 (six hundred and eighty six thousand
nine hundred and twenty one rand thirty eight cents)
paid to the
first defendant, as well as an amount of R750 000 (seven hundred and
fifty thousand rand) being for damages suffered.
The claim is based
on an oral agreement entered into between the plaintiff and the first
defendant. The terms of the said agreement
are as set out in
paragraphs 3.1 to 3.6 of the particulars of claim. The first
defendant is said to have breached the agreement
as is set out in
paragraph 6 of the particulars of claim. As a result of the breach
the plaintiff cancelled the agreement, as pleaded
in paragraph 7.3 of
the particulars of claim.
14.2
The
Consumer Protection Act ("the CPA"), is said to apply to
the agreement entered into between the parties. The allegation
is
that the provisions of the CPA support the plaintiffs common law
claim as set out in paragraph 4 of the particulars of claim.
14.3
The
joint and several liability of the second, third and fourth
defendants as directors of the first defendant is founded upon the
first defendant carrying on its business recklessly,
alternatively
with gross negligence, and
with intent to defraud the plaintiff,
alternatively
for
fraudulent purposes. The allegation is that the second, third
and fourth defendants knowingly took part in such
conduct and they,
as a result, contravened their obligations as directors in terms of
the
Companies Act 71 of 2008
("the new
Companies Act"
;). The
second, third and fourth defendants stand to be declared liable to
the plaintiff in terms of s 424 (1) of the Companies
Act 61 of 1973
("the old Companies Act") for the amounts owing to the
plaintiff by the first defendant. In addition,
the second, third and
fourth defendants are said to be liable to make payment to the
plaintiff for the loss and damage suffered
by the plaintiff as a
result of the contraventions of the provisions of the new Companies
Act in terms of s 218 (2) of thereof.
DISCUSSION
[15]
I do not intend to
deal, in this judgment, with each and every ground of exception as
traversed by the defendants in their heads
of argument but to address
each ground raised in relation to each particular cause of action in
the particulars of claim.
Breach
of the Agreement:
[16]
The defendants raise nine grounds of
exception that the particulars of claim in this regard are excipiable
due to lack of necessary
averments to sustain a cause of action,
namely, grounds of exception three, five, seven, eight, nine, ten,
eleven, thirteen and
nineteen.
[17]
The complaint by the defendants in this
regard is that the plaintiff failed in his particulars of claim to
allege the necessary
averments to sustain a cause of action in
respect of:
17.1
the
amount of R186 921, 38, which is in excess of the maximum restoration
costs of R500 000 pleaded in paragraph 3.4 of the particulars
of
claim;
17.2
the
terms of the plaintiff's obligations as set out in paragraph 5 of the
particulars of claim and consequently, the basis from
which such
alleged obligations originated from.
17.3
the
parts of the vehicle which were taken from it for restoration of
other vehicles and the identity of the other vehicles entrusted
to
the first respondent by other consumers.
17.4
the
spares alleged to have been fitted to the vehicle when first
delivered to the first defendant as well as the value of such parts.
17.5
the
identity of the services alleged to have not been rendered by the
first defendant but invoiced, as well as, the true value of
such
services as invoiced.
17.6
the
identity of the spares and/or parts allegedly not delivered or used,
as well as, the value of such spares and/or parts as invoiced.
17.7
the
basis on which the actions of the first defendant, which caused the
plaintiff to assemble the chassis, engine and gearbox and
other
components of the plaintiff's vehicle in a dilapidated and
non-functional condition, constitute a material
breach or failure of duty by the first
defendant.
17.8
how
the conduct by the plaintiff himself in assembling the chassis,
engine, gearbox and other components of the plaintiff's vehicle
in a
dilapidated and non-functionable manner could constitute a material
breach of the alleged agreement which entitled him to
cancel the
agreement.
17.9
the
failure to make the necessary averments that demand was made-to any
of the defendants and which entitles the plaintiff to claim
mora
interest on the basis of the
agreement.
[18]
There are also two grounds, namely the
ground of exception one and two, which are said render the
plaintiff's particulars of claim
excipiable due to being vague and
embarrassing, in the following manner:
18.1
The
failure by the plaintiff to plead whether the allegations of
conducting an oral agreement in paragraph 3.2 of the particulars
of
claim contains allegations of background or surrounding circumstances
or whether the plaintiff pleads paragraph 3.2 as a material
term of
the alleged oral agreement.
18.2
The
failure by the plaintiff to plead whether the allegations of the oral
agreement in paragraphs 3.1 to
3.6
of the particulars of claim
constitutes the terms of the agreement or facts of background
and
surrounding circumstances.
[19]
The paragraphs complained of, in this
respect, are pleaded as follows in the plaintiff's particulars of
claim:
"During or about September 2013, and at
Johannesburg, Plaintiff, acting in person, and First Defendant,
represented by Second
Defendant. entered into an oral agreement in
terms of which:
3.1
First Defendant would perform a
restoration of Plaintiffs vintage replica 1938 model Jaguar SS 100;
3.2
The
parties acknowledged that the vehicle had already been almost
completely restored at the time, and First Defendant would merely
attend to minor body work comprising sanding down of small nicks and
dents, checking the gearbox and other mechanical parts, and
fix what
needed to be fixed to the vehicle which was in
a
running and complete intact
C9ndition, when handed to First Defendant;
3.3
The
restoration would be completed within a reasonable time, and would be
completed within a period of 18 months;
3.4
The
restoration cost would have amounted to R500 000-00;
3.5
First
Defendant would supply Plaintiff with a proper written quotation,
indicating costs, and would during the restoration process
keep
Plaintiff abreast of services rendered and goods necessary to comply
with First Defendant's obligation of restoration;
3.6
Plaintiff
would make payment of invoices rendered by First Defendant relating
to the restoration process from time to time."
[20]
From the reading of
the abovementioned paragraph it is clear that the subparagraph refers
to the terms of the alleged oral agreement
and that subparagraph 3.2
relates to background and surrounding circumstances. The averments as
they stand sustain a valid cause
of action. There is, also, no
vagueness or embarrassment that the defendants are complaining about.
The Application of the CPA:
[21]
The defendants raise two grounds of exception, grounds of exception
four and fourteen, that this
cause of action is excipiable due to
lack of necessary averments to sustain a cause of action, in the
failure to -
21.1
allege whether the services in respect
of which it is alleged the CPA applies were to be rendered by the
first respondent in terms
of any agreement and the material terms of
such agreement.
21.2
plead the details of the alleged common
law obligations and their replacement of such common law principles
by any statutory regulation
of any particular subject.
21.3
aver whether the plaintiffs entitlement
to the refund of the amount of R686 921, 38 flows from the CPA, the
cancellation of the
agreement or the common law principles.
21.4
take into account that the common law,
to the extent that it may exist and be applicable to a particular
subject, would be replaced,
should any statutory regulation be
promulgated on the subject.
[22]
The defendants also raise another ground
of exception in this regard, the sixth ground of exception, which
they say render the plaintiffs
particulars of claim excipiable due to
being vague and embarrassing, in that the particulars of claim fail
to-
22.1
allege whether the individual
sub-paragraphs of paragraph 6 of the particulars of claim are
obligations of the first defendant in
terms of the alleged agreement
or obligations of the first defendant in terms of CPA which is
implied in the provisions of the
alleged agreement.
22.2
aver that the provisions of the CPA are
implied, and which provisions are implied in the alleged oral
agreement.
[23]
In paragraph 4 of the plaintiff's
particulars of claim the following is pleaded:
"The agreement entered between the
parties, and the services to be rendered by First Defendant fell
within the ambit of the
Consumer Protection Act, No 68 of 2008 ("the
CPA"), and First Defendant was
inter alia
obliged . . ."
[24]
From the reading of the said paragraph it is apparent that the
plaintiff's claim does not flow
from the provisions of the CPA
per
se
but the allegation is that the agreement entered into by the
parties and the services alleged to have been rendered by the first
defendant fell within the ambit of the CPA.
[25] The purposes
of the CPA are to promote and advance the social and economic
welfare of consumers
in South Africa by, amongst others, promoting
fair business practices and protecting
consumers from:
unconscionable, unjust
or otherwise improper trade practices and deceptive, misleading,
unfair and fraudulent
conduct.
[11]
[26]
The allegation, therefore, is
that, in terms
of the oral agreement,
the first defendant was obliged to comply with the
requirements of the CPA
as set out in the subparagraphs to paragraph
4 of the plaintiff's particulars of claim.
[12]
This, however, does not detract from the fact that the
plaintiff's rights in terms of the common law are still applicable.
This is so, because, in interpreting the CPA, no provision must be
interpreted so as to preclude a consumer from exercising
any rights afforded in terms of the common
law.
[13]
[27]
The plaintiff's contention in his heads of argument that the
inclusion of the CPA
in this regard is
a
plus petitio,
the deletion of which
will not result in the particulars of claim not
disclosing a cause of action,
makes sense. In my view, it can, also,
not be said that the particulars of claim in this respect are vague
and embarrassing. The
subparagraphs in paragraph 4 set out, clearly,
the provisions of the CPA on which the plaintiff relies and it is not
necessary
to have averred that the provisions are implied.
A claim for Damages
[28]
In respect of the claim for damages, the
defendants raise one ground of exception, the fifteenth ground of
exception, that the particulars
of claim are excipiable due to lack
of necessary averments to sustain a cause of action, in that:
28.1
Having
claimed a refund of the amount of R686 921-38 constituting the
alleged amounts paid by the plaintiff to the first defendant,
the
plaintiff fails to allege on what basis he would be entitled to
receive payment in the amount of R750 000 in respect of damages
in
respect of the same agreement.
[29]
There is, also, another ground raised by
the defendants which, according to the defendants, render the
plaintiffs particulars of
claim excipiable due to being vague and
embarrassing, namely, the sixteenth ground of exception, in that it
fails to-
29.1
allege
on what basis the amount of R750 000 for damages is claimed,
specifically whether or not the plaintiff has restored the vehicle.
29.2
set
out how the sum of R750 000 is made up in contravention of uniform
rule 18 (10).
[30] In support
of his argument that the particulars of claim in this regard are not
excipiable, the
plaintiff referred to the judgments in
Baker
v Prober
[14]
and
lnzalo
Communications v Economic Value Accelerators.
[15]
[31]
The plaintiff's claim for damages is
valid on the face of it. Such a claim is characterised as 'a claim
for repayment of an amount
paid in respect of a defective or
non-existent service, or a deficiency in breach of a contractual
warranty, i.e. a claim for restitution
of the plaintiff's
performance, pursuant to the cancellation of the contract'.
[16]
Claims of this nature are in certain circumstances allowed,
where an aggrieved party may claim restitution against
a
defaulting co-contracting party post cancellation.
[17]
Restitution, in this regard, is referred to in the non-technical
sense as identified by the court in
Probert.
[18]
[32]
I do not think that the judgments the
plaintiff refers to, on this point, are a proposition that he can
claim for the return of
the amount paid to the first defendant as
well as claim damages on the basis of breach of contract. My
understanding of the said
judgments is that firstly, the two claims
can be claimed separately or at the very least in the alternative;
secondly, the amount
claimed for damages must be equal to the amount
expended by the plaintiff. In my view, the cases used by the
plaintiff only establish
an entitlement to restitution pursuant to
defective contractual performance post-cancellation and nothing more.
[33] Read in
isolation, I would not say that the particulars of claim in paragraph
9 lack necessary
averments to disclose a cause of action. I would
rather say that the averments contained in paragraph 9 read together
with the
averments in paragraphs 3 to 8 of the particulars of claim
are contradictory, and if not pleaded in the alternative, destroys
the
plaintiffs cause of action. The said averments are, thus,
patently vague and embarrassing and the defendants will be prejudiced
if the averments are allowed to stand and they are obliged to plead
thereto.
[34]
In order for the plaintiff to sustain
the two causes of action, that is, the claim for restitution
repayment and the claim for damages,
more particularity ought to have
been given to the averments in paragraph 9 of the particulars of
claim. Therefore, the failure
by the plaintiff in his particulars of
claim (paragraph 9 in particular) to allege on what basis the amount
of R750 000 for damages
is claimed, specifically whether or not the
plaintiff has restored the vehicle; and to set out how the sum of
R750 000 is made
up in contravention of uniform rule 18 (10), makes
the particulars of claim vague and embarrassing. This, strikes at the
root of
the formulation of the cause of action and its legal
validity. The claim by the plaintiff of the amount of R750 000 for
damages,
in excess of the amount paid to the first defendant by the
plaintiff for the services, confuses the averments even further. It
is thus, necessary for the plaintiff to allege on what basis the
amount of R750 000 is claimed for damages and/or how it is made
up.
The defendants will, indeed, be seriously prejudiced thereby.
[35]
I must state, further, that it was not
necessary for the plaintiff in the circumstances of this
case to
plead enrichment, as it
was suggested by the defendants. A claim for restitution
in this context
has been held not (and cannot be) one for
enrichment.
[19]
Therefore to allege enrichment in such circumstances would only be to
unnecessarily burden the pleadings and the evidence
to be led at the
trial. Contractual remedies (including restitution in the technical
sense identified in
Probert)
lie
where the contract is the source of the claim. It is only where the
purported contract had no legal
effect
that the claim could be founded
in an enrichment action.
[20]
[36]
Hence, this ground of exception is well
taken insofar as it relates to the restitution claim being sought
together with the claim
for damages.
The Third Cause of Action is in respect of the
liability of the directors:
[37]
The defendants raise one ground of
exception that the particulars of claim are in this respect
excipiable due to lack of necessary
averments to sustain a cause of
action, namely, the twelfth ground of exception, in that it fails to
-
37.1
allege how the conduct by the first
respondent amounted to the first respondent carrying on its business
recklessly,
alternatively
with
gross negligence and with the intent to defraud the plaintiff,
alternatively
for
a fraudulent purpose.
[38]
There are two further grounds raised by
the defendants which according to the defendants render the
plaintiff's particulars of claim
excipiable due to being vague and
embarrassing, namely, the seventeenth and eighteenth grounds of
exception, in that the particulars
of claim fail to -
38.1
aver when, where and how, by individual
allegations relative to the second, third and fourth defendants, they
allowed the first
defendant to carry on its business recklessly,
alternatively
with
gross negligence, and with intent to defraud the plaintiff,
alternatively
for
fraudulent purposes.
38.2
specifically allege that the second,
third and fourth defendants had knowledge of the conduct of the first
respondent.
38.3
set out the provisions of the new
Companies Act contravened by the defendants.
38.4
allege
which components of section 218 (2) of the new Companies Act were
breached by the second and/or third and/or fourth defendants.
[39] I am in
agreement with the plaintiff's contention that the allegations in
respect of the conduct
of the first defendant are a conclusion of law
and can never be part of the
facta probanda.
The facts
referred to by the plaintiff in paragraph 10 of the particulars of
claim justify such a conclusion of law.
CONCLUSION
[40]
It is, therefore, my conclusion that
when the particulars of claim are considered against the exceptions
taken that the grounds
of exception, except the sixteenth ground of
exception,
40.1
do not attempt to raise a substantive
question of law which may have the effect of settling the dispute
between the parties; nor
do they in any real sense bring an end to
any distinct part of the case.
40.2
do not go to the root of the whole cause
of action. They are merely directed at specific paragraphs in the
particulars of claim.
40.3
do not establish vagueness in the sense
of rendering the particulars of claim meaningless and capable of more
than one meaning.
The grounds of exception having failed to show
vagueness and therefore embarrassment it cannot be said there is
consequently embarrassment
that may amount to prejudice.
40.4
amount to nothing more than lack of
particularity which can be cured by the leading of evidence. The
complaints, in essence, relate
to
facta
probantia
and cannot properly found
an exception.
[41]
As already stated, the exception as
regard the sixteenth ground of exception has been well taken. I
intend to give the plaintiff
an opportunity to remove the cause of
complaint and to amend the particulars of claim to provide clarity in
relation to that ground
of exception.
COSTS
[42]
The plaintiff has been substantially
successful herein and is thus entitled to the costs of suit. Both
parties were respectively
of the view that as a successful party they
ought to be entitled to a punitive cost scale. I, however, do not
think that a punitive
scale of cost is appropriate in the
circumstances of this matter. The plaintiff, is thus, entitled to the
ordinary scale of costs,
that is, costs on a party and party scale.
ORDER
[43]
I make the following order
1.
All
the grounds of exception, except ground of exception 16, are
dismissed.
2.
Ground
of exception 16 is upheld and the plaintiff is granted leave to amend
the particulars of claim within fifteen (15) days of
this order.
3.
The
defendants are ordered to pay the costs of this exception jointly and
severally, the one paying the others to be absolved.
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
Appearance:
Excipients/Defendants'
Counsel
:
Adv E. J. FERREIRA
Excipients/Defendants'
Attorneys
: BARLETTS
INCORPORATED
c/o SAVAGE JOOSTE &ADAMS
Respondent/Plaintiffs
Counsel
:
Adv J.G. BERGENTHUIN, SC
Respondent/ Plaintiffs Attorneys
:
CILLIERS & REYNERS ATTORNEYS
Date
of hearing
:
4 December 2018
Date
of judgment
:
30 April 2019
[1]
Astral Operations v Nambitha Distributors (Pty) Ltd; Astral
Operations Ltd v O'Farrell NO
[2013] 4 All SA 598
(KZD) at para 4.
[2]
Francis v Sharp
2004 (3) SA 230
(CPD) at 2370- E.
[3]
Trustees, BIR Fund v Break Through Investments CC
2008 (1) SA 67
(SCA) pa ra 11 and Stewart v Botha
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA) para 4.
[4]
At 231F - G, 240E - Hand 245F.
[5]
1920 CPD 627
at 630.
[6]
Lancino Financial Investments (pty) & another v Benett &
another
[2007] JOL 19653
(T) para 13.
[7]
2002 (2) SA 737
(C) at 541J - 542A.
[8]
2018 (3) SA 405
(SCA) para 9.
[9]
See Makgae v Sentraboer (Kooperasle) Bpk 1981(4) SA 239 (T) at
244H - 245A.
[10]
See Vermeulen v Goose Valley Investments (pty) Ltd [2001] 3 All SA
350 (A).
[11]
See section 3 (1)
(c)
and
(d).
[12]
Sections 19, 54
(b), (c)
and
(d).
[13]
See section 2 (10).
[14]
1985 (3) SA 429
A.
Where a purchaser of a shareblock in a company made payment to the
seller's agent in anticipation of the transfer thereof by
the
seller. The seller failed to deliver the share certificates, and the
purchaser cancelled the contract on the ground of the
defendant's
breach. The seller's agent was placed In liquidation, and the
purchaser claimed repayment of the purchase price from
the seller.
The Appellate Division accepted that the purchaser was entitled to
the purchase price from the seller and that It
was appropriate to
classify the case as one for restitution.
[15]
2008 (6) SA 87
WLD.
[16]
See lnzalo p99 paras 36 and 37.
[17]
See lnzalo p97A paras 30 and 36.
[18]
1985 (3) SA 429
A.
[19]
See lnzalo p98 para 34.
[20]
lnzalo p100 para 41.